Brett v. Catlin

47 Barb. 404, 1866 N.Y. App. Div. LEXIS 142

• Court: New York Supreme Court
• Decided: November 5, 1866
• Status: Published

Opinions

Mullin, J.

There are but two of the numerous questions raised on the, argument that are worthy of consideration. These are; 1st. Was the evidence of Vanderbilt, as to the removal and- concealment of goods by Bay Brothers* admissible ; and 2d. Was the refusal to charge that if the plaintiff had willfully sworn falsely that he bought and owned all the property at 115 Liberty street, the rule falsas in uno falsas in omnibus applies, and the jury were bound to disregard his evidence, erroneous.

The plaintiff gave evidence tending to prove that the property in question was in the first place turned out to him as security for his loans to them, and subsequently it was sold to Mm in payment of such debt. After the transfer, the defendants seized the property, and for this seizure this action was brought. It was proposed by the defendant to prove by Vanderbilt and others, that about the time of this transfer, the debtors, Bay Brothers, employed him (V.) to carry goods from their store to other stores or places of deposit, for the purpose of fraudulently concealing their property from their creditors. This evidence'was objected to by the plaintiff’s counsel and rejected.

Assuming the facts to be as the defendants offered to prove them, do they tend to shoxv fraud in the transfer to the plaintiff ? It seems to me not. If the plaintiff’s debt was an honest one, (and the jury have so found it to be,) Bay Brothers had the right to prefer it, and pay it by the appropriation of their property. The validity of the debt can not be disproved by showing the existence of an intent to defraud other creditors, or even by proof of actual fraud towards' them. While the plaintiff is able to show that Ms debt is bona fide, no act .of the debtors, in reference to their property, other than that transferred to the plaintiff, can impair its validity. I think the evidence xvas properly rejected.

As to the other point, I have entertained more doubts. As a general proposition, proof of willful and corrupt perjury, as to one material fact in a case, renders a witness unxvorthy of credit as to any other matter to which he may have testified. But he may be corroborated ; and being corroborated, he may be believed. The learned judge was requested to charge the general proposition as I have stated it, and he refused, but told the jury that such false swearing went “ greatly to discredit his testimony, and to impeach him in considering the rest of his evidence.”

The learned judge does not tell the jury that they may credit the witness if he is corroborated; but he was not asked to so charge, and the defendant’s counsel can not now complain of the o.mission.

There are in the case facts xvhich tend directly to corroborate Mm, such as the notes, &c. and the testimony of Bay and others, upon the facts before the jury. Therefore, the general rule of law stated by the counsel in his request to charge had no application; and the judge was right in refusing to charge it, unless modified. So modification was suggested, and I am of opinion that the charge was right, upon the facts proved, and the judgment should be affirmed.

Ingraham, J. concurred.